McCarthy v. United States
| Decision Date | 03 April 1928 |
| Docket Number | 5032.,No. 5031,5031 |
| Citation | 25 F.2d 298 |
| Parties | McCARTHY v. UNITED STATES. CODY v. UNITED STATES. |
| Court | U.S. Court of Appeals — Sixth Circuit |
James T. Cassidy, of Cleveland, Ohio, for plaintiffs in error.
John B. Osmun, Asst. U. S. Atty., of Cleveland, Ohio.
Before DENISON and MOORMAN, Circuit Judges, and TUTTLE, District Judge.
The respondents in these cases were arrested for being in the possession of intoxicating liquor, and for maintaining the place where it was kept for sale. One Close was arrested with them, as a participant in their offenses. All three under arrest were taken before the district attorney for examination. An officer who was present testified that at this time, and in the presence of the two respondents, Close had said that the respondents were the ones who carried on this place. Objection was made to this testimony. The court ruled that, as Close's statement was made in the presence of respondents, the officer's recital of it could be received. Doubtless there are cases where testimony as to statements made in the presence of a respondent may be intended as introductory to some affirmative admission or confirmatory statement thereupon made by him, and in such case an objection, as soon as the witness is asked what was said in respondent's presence, may be premature, for the question may be leading to a confession by respondent; but here there was no testimony that either respondent said anything, and it seemed to be the theory of the prosecutor and of the court that the silence of the respondents under such circumstances would be considered as tending to show their guilt. We infer from the record that the ruling was intended to be to this effect, and that the jury would have so understood it.
This was error. Where accusatory statements are made in the presence of a respondent and not denied, the question whether his silence has any incriminating effect depends upon whether he was under any duty or any natural impulse to speak. Sometimes or often, in the earlier stages of the matter, there may be such a duty or impulse; but, after the arrest and during an official examination, while respondent is in custody, it is common knowledge that he has a right to say nothing. Only under peculiar circumstances can there seem to be any duty then to speak. Lacking such circumstances, to draw a derogatory inference from mere silence is to compel the respondent to testify; and the customary formula of warning should be...
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People v. Cockrell
...United States v. Pearson (1965) 6 Cir., 344 F.2d 430, 431; Helton v. United States (1955) 221 F.2d 338, 341-342; McCarthy v. United States (1928) 6 Cir., 25 F.2d 298, 299.) Pearson and McCarthy stated, that 'after the arrest and during an official examination, while respondent is in custody......
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Chapman v. U.S.
...you do not say anything, that will be used against you." United States v. Brinson, supra, 411 F.2d at 1060, quoting McCarthy v. United States, 25 F.2d 298 (6th Cir. 1928). That is scarcely less true of the prohibition against using silence to impeach an exculpatory story.8 Even if the evide......
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Agnellino v. State of New Jersey
...`If you say anything, it will be used against you; if you do not say anything, that will be used against you.'" McCarthy v. United States, 25 F.2d 298, 299 (6th Cir. 1928). I believe the admonition is as true regarding impeachment as where direct use is I do not, however, believe that "sile......
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United States v. Lenardo, Crim. A. No. 74-323.
...silence, it would be inadmissible to impeach a defendant's trial testimony. The Brierly court quoted with approval McCarthy v. United States, 25 F.2d 298, 299 (6th Cir. 1928): ". . . to draw a derogatory inference from mere silence is to compel the respondent to testify; and the customary f......